Re Davui

[2010] QMHC 29

MENTAL HEALTH COURT

CITATION:

Re Davui  [2010] QMHC 029

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF JOSEFATA DAVUI

PROCEEDING NO:

0005/10

DELIVERED ON:

2 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr E N McVie

FINDINGS AND ORDERS:

1. That at the time of the alleged offence on 26 February 2008 the subject of the reference the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld).

2. That the defendant be detained as a forensic patient at the Cairns Network Authorised Mental Health Service.

3. That limited community treatment is approved to commence immediately at the discretion of the treating psychiatrist, on the conditions set out in the submission of the Director of Mental Health.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with sexual assault – where evidence the defendant has a long-term psychotic illness – whether the defendant was of unsound mind at the time of the alleged offences as described in Schedule 2 of the Mental Health Act 2000 (Qld).

COUNSEL:

J Briggs for the Defendant
J Tate for the Director of Mental Health

J Thomas for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health

The Director of Public Prosecutions (Qld)

ANN LYONS J:

1. This is a reference by the Director of Mental Health in relation to a charge of sexual assault which occurred on 26 February 2008.

1. The factual background is that on the day in question at 10.30am the complainant was sitting on a bench outside the Weipa library having a cigarette when the defendant approached her, sat down, put his arm around her and began to pull her towards him. She stood up. At the same he reached in under her legs and grabbed her on the outside of her vaginal area. She was wearing jeans at the time. She responded that that was not acceptable and the defendant replied “I know”. Police were called. The defendant was arrested and taken to the watch house. Police noted that he was vague and appeared to be mentally ill. The police also noted that a Mental Health warrant was in existence. He was immediately returned to psychiatric care in Cairns.

1. Dr Ernest Hunter, in a report to the Director of Mental Health, dated 7 January 2010 based his report on an interview with the patient on 25 November 2009 almost two years after the offences. Dr Hunter diagnoses schizophrenia and a dissocial personality disorder. He does not consider that there is a dispute of facts and indicated that the defendant had said to him “I thought I should be a gentleman or should I act like I’m in a relationship. I thought she could be my girlfriend.”

1. There is no evidence that substance abuse was involved at the time of the offences, although the defendant does have a long history of cannabis and alcohol abuse.  His first diagnosis was as early as 2002 and since that time he has been in psychiatric rehabilitation on at least one occasion and has been treated with a range of medications. Dr Hunter noted he was commenced on clozapene in 2006. However, he was non-compliant and over-sedation was also noted.

1. He has a criminal history going back to 1995 for offences including stealing and wilful damage. Dr Hunter considered that whilst it was clear that Mr Davui was unwell and had not been taking his medications at the time of the offences, he considered that by his own account and that of the complainant he said was aware that his behaviours were inappropriate and that that behaviour would result in consequences to him.  Clearly however this information was obtained immediately after the alleged offence and it would seem that may have only been the position when he realised that the complainant was not his wife.  

1. Dr Hunter also stated that Mr Davui was able to desist when confronted and accordingly, initially he did not consider that Mr Davui was deprived of the relevant capacities. However Dr Hunter gave evidence at the hearing and indicated that he had reconsidered his opinion and now agreed with Dr Voita’s view that Mr Davui was of unsound mind at the time. Dr Hunter considered that Dr Voita was able to flesh out the factual background better than he was able. He also considered that Mr Davui was in a better mental state when interviewed by Dr Voita. He considered he was significantly thought disordered immediately after the commission of the alleged offence. He now considered that Mr Davui was of unsound mind as defined by s 27 of the Criminal Code 1899 (Qld) (the Code) at the time of the offence.

1. Dr Hunter recommended a forensic order given that Mr Davui has a history of schizophrenia together with a period of behavioural disturbances and substance abuse. He considers that he is prominently thought disordered and has difficulty in organising and directing his life in a consistent direction. He also considers that Mr Davui has been evasive in relation to mental health service providers and his intent on ceasing his medication. He also considers he has no insight.

1. Dr Hunter also stated that Mr Davui has been itinerant in the past and he considers he needs intensive case management and follow up.  Dr Hunter considers Mr Davui needs stable management and greater scrutiny of management to ensure he gets continuity of treatment.  He considers he needs strict monitoring in a non remote setting.

1. Dr Hunter endorsed the draft conditions set out in the submission from the Director of Mental Health and indicated that such conditions would not rule out visits to the Cape with appropriate supervision.

1. In her report dated 7 August 2010 Dr Angela Voita considered that Mr Davui exhibited very limited insight into his illness and his treatment needs and his judgment appeared to be chronically impaired at the time she examined him on 29 April 2010. While his speech was normal she considered he exhibited significant formal thought disorder with evidence of loosening of association and tangentiality. He also described delusional ideas in relation to being in a movie; delusions of reference and auditory and visual hallucinations. At times she considered Mr Davui was perplexed.

1. Dr Voita considered at the time of the commission of the alleged offence on 26 February 2008, Mr Davui was suffering from a mental disease or natural mental infirmity as defined by s 27 of the Code. He was suffering from schizophrenia, paranoid type. She also considered he would fulfil the criteria for cannabis and alcohol dependence as well as an anti-social personality disorder.

1. Dr Voita considered Mr Davui was not deprived of the capacity to understand the nature of the act or that of control but that he was deprived of the capacity to know that he ought not do the act.

1. Dr Voita considered that based on the account provided to her by Mr Davui he was clearly psychotic with evidence of disorganised belief and thought at the time of the alleged offence. She considered he appeared to have been under the delusional belief that the alleged victim was his wife and therefore thought he was entitled to touch her. He also expressed belief that the woman in some way invited his advances. This was implied in her body language and the way she looked at him. Dr Voita considered that although he subsequently reported to the victims that he knew what he did was wrong, she considered that it was unlikely that he would have been aware of the wrongfulness of the act at the time of the commission of the alleged offence and she does not consider he could have reasoned with a moderate degree of composure about the wrongness of the act.

1. It is clear that Mr Davui did not leave the scene after the victim left and he did not flee when police arrived. It is also significant Dr Voita considered that when police arrived he appeared to be distracted and not comprehending his circumstance. Dr Voita stated that Mr Davui’s father indicated he was not well at the time of the offences and he suspected he was not taking his medication.

1. Dr Voita noted that when Mr Davui was transferred to the Cairns Hospital Mental Health Unit later that day they described him as “guarded, suspicious, perplexed and thought disordered”. Dr Voita also considered that his account to the treating team on 4 March of the offence also suggested that psychotic beliefs were present at the time of the alleged offence.

1. It is clear that he also reported to Dr Hunter that he believed the woman could be his girlfriend. Dr Voita considered that “all these accounts strongly support the view that he was floridly psychotic at the time of the alleged offence and the alleged offence was motivated by psychotic phenomena”. Dr Voita also noted he was recommenced on clozapene a few days after his admission to the hospital. There is no evidence of intoxication. Dr Voita considers that if Mr Davui is found of unsound mind he should be placed on a forensic order given the severity and chronicity of his mental illness, his limited insight into his illness and treatment needs, the ongoing need for treatment and monitoring of his mental state, and the ongoing long term risk issues.  Dr Voita considered that the granting of full limited community treatment would be appropriate and that this conditions should include regular breathalysing for alcohol and random urine drug screens. Dr Voita also thought consideration should be given to a retrial of clozapene.

1. The views of the assisting psychiatrists both support Dr Voita’s conclusions.  Dr Varghese and Dr McVie consider that Mr Davui has a long term psychotic illness and that he was psychotic at the time of the alleged offences.  They considered that Mr Davui’s offences occurred secondary to “delusional misidentification” and that he was of unsound mind at the time of the commission of the alleged offence

1. I am therefore satisfied on the basis of the views of all of the psychiatrists that Mr Davui was of unsound mind within the definition of that term as described within Schedule 2 of the Act.

1. I consider a Forensic Order is required given Mr Davui’s history of non compliance and itinerancy and the appropriate conditions are as set out in the submissions of the Director of Mental Health.